R v Tomlin - [1995] QCA 177

COURT OF APPEAL

[1995] QCA 177

McPHERSON JA
PINCUS JA

de JERSEY J

CA No 56 of 1995
THE QUEEN
v.

SCOTT ALAN TOMLIN

Applicant

BRISBANE
..DATE 04/04/95
McPHERSON JA: This is an application for leave to appeal
against the sentences imposed in the District Court in
Maroochydore on the applicant on 9 February 1995.

The sentences and the offences in respect of which they were imposed are as follows. Imprisonment for four years for being in a dwelling house with intent; 18 months for assault with intent to rape; four years for entering a dwelling house with intent; and 12 years for the offence of rape.

The Judge recommended that the applicant be considered for parole after serving seven years of that sentence. The effective sentence, it will be seen, was 16 years subject to that recommendation.

The offences were committed on two separate occasions. The
first two offences, that is, being in a dwelling house with
intent and assault with intent to rape, were committed on
18 October 1994. The victim on that occasion was a 30-year-
old woman who lived alone in a flat. She had been introduced
to the applicant by a friend from an adjoining flat about a
month or two before the occasion when the offences were

committed.

She met him again about two weeks before 18 October, when he
came to her flat at about 3 o'clock in the morning. She spoke
to him briefly on that occasion and he asked her to supply him
with "speed" and also to have sex with him, offering to pay
her $100. She refused saying she was not a whore.
On the night of 17 October 1994 the complainant went to bed
about 10.30 and read for a while before going to sleep. She
was wakened by knocking at the door and by hearing her dog
bark. After going to the door she saw the applicant there.
He asked her to hold his wallet for an hour, for whatever
reason he might have had for that, but she refused and told
him to leave and tried to close the door.

He forced the door open again and forced his way inside, pushing the complainant backwards on to a couch. He then pinned her down with his knees and arms and held a hand over her nose and mouth. She had difficulty breathing and tried to resist but could not do so. The applicant told her, according to her account of it, that, "We could do this the easy way or the hard way" and that he was going to rape her no matter what happened.

He struck her a back-handed blow to the forehead. She told him she wished to go to the toilet and that it was becoming urgent. Eventually he agreed to let her go outside the flat but kept hold of her while she squatted outside the front door and urinated. Towards the end of this incident she managed to escape from his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tomlin

Details

AGLC: R v Tomlin [1995] QCA 177
Case: [1995] QCA 177
Decision Date: 4/04/1995

CaseChat Overview and Summary

In the case of R v Tomlin, the applicant, Scott Alan Tomlin, sought leave to appeal against the sentences imposed by the District Court in Maroochydore, which included four years for being in a dwelling house with intent, 18 months for assault with intent to rape, four years for entering a dwelling house with intent, and 12 years for the offence of rape. The court was required to determine whether the cumulative sentence of 16 years, subject to a parole recommendation after seven years, was oppressive or disproportionate under the totality principle.

The Court of Appeal considered the principle of totality, which requires a sentencing judge to avoid imposing a disproportionate sentence for the totality of the conduct involved. The Court examined the severity of the offences and the applicant's criminal history, which included multiple convictions for non-violent offences but no prior convictions for personal violence. The Court also noted the applicant's admissions to the police regarding the rape offence and his plea of guilty to that charge. Ultimately, the Court found that while the sentence was substantial, it was not so disproportionate to the totality of the offending conduct as to warrant interference. The Court concluded that the overall sentence was within the limits of proper sentencing discretion and dismissed the application for leave to appeal.

Orders